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In December 2015, Congress passed the Every Student Succeeds Act (ESSA), which redefined the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of the NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government lacks the ability to prompt improvements in student achievement and to demand equal resources for low-income students. Thus, the ESSA boldly presumes that states will voluntarily improve educational opportunities for low-income students despite their historical tendency to do the contrary.

This Article is the first to offer a comprehensive analysis and critique of the ESSA. It demonstrates that although the ESSA commits to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Broad state discretion opens the door to fifty disparate state systems, none of which ensure equality. Second, the ESSA directly weakens two existing equity standards and ignores a loophole that exempts 80 percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education.

Although Congress is unlikely to repeal the ESSA, the Act is set to expire by its own terms in an unusually short time period. Thus, preparations to either reauthorize or alter the Act will start soon. By then, the inequalities that the ESSA permits will be evident. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: (1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; (2) meet the outstanding needs of low-income students; and (3) expand preschool education, which would close achievement gaps and, through cost savings, make state compliance with equity provisions more feasible.


DOI: DOI: Copyright © 2017 California Law Review, Inc. uploaded with the permission of California Law Review

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